help needed, landlord playing nasty

[Jimbles]

Hi guys,

 

Really hope we can get some advice, we are having real problems with our landlord. First of all there are repairs that have been outstanding nearly a year that are getting worse, damp that is shorting electrics, half the electrics in the house are out, the plumbing both in and out, rotting walls the list is endless.

 

I have been promised time and time again it will be fixed and normally he sends round an unskilled worker to botch it over, even important thingsnow as my daughter seems to be getting ill from the damp i contacted him again, he came round with his same 2 workers and said they would be back on Monday, he was also stating it is my fault and he will be holding the deposit (there is no TDS for it that I am aware of) he also stated he would be charging my guarantor for the repairs.

 

This is all nothing new, this is exactly how he behaved last year, we would move however we cant afford to.

 

I know for a fact he has lost the tenancy agreement and also it was my mum and dad that signed the gurantor, he thinks it was someone else. Sounding a bit crazy? he really is, he always comes round with no notice shouting and bawling making my wife feel unsafe, and sends letters demanding money for things that never happened.

 

Our issue is that we are behind with the rent, by 2 months, he says we are witholding it due to repairs and that is dangerous, but in truth we are really struggling, however we have just had a claim for housing benefit approved so will be able to start paying again.

 

My question is, can I make a claim under the TDS (Tenancy Deposit Scheme) as I know that he has not set it up and we have not received any information.

 

I know it is a long post and perhaps a bit rambling, but we are under a lot of pressure due to this situation and really need some help please

[Steve__M]

You *could* make a claim that your deposit is not protected, but I can't see it solving the problems you describe.

 

Your claim would fail if your landlord protected the deposit before the hearing, and you may not get back the costs (I understand some people don't have to pay costs for submitting claims? Might be worth looking into).

 

At the moment you are at risk of LL trying to evict you for being behind on rent.

[Ed999]

My comments apply only if the premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord), and only if you were over 18 years of age when the tenancy was granted.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

Bear in mind that if you are a shorthold tenant, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the initial six months ends (expiring on the last day of a rent period). No reason has to be given. Where a dispute arises, concerning any matter, the landlord can simply end the tenancy in that way.

 

 

Access by the Landlord

 

Read this FAQ - Access to the Property by the Landlord

 

In summary it boils down to this: if you have a shorthold tenancy, the landlord only has a right of entry in order to carry out repairs, not for any other purpose.

 

A tenancy gives the tenant a legal right to exclude the landlord from the premises, which is an important right that lodgers/licensees do not have. If you are a tenant, you can change the locks, immediately, to keep the landlord and his agents out; but you must not cause any damage in doing so.

 

Bear in mind that if you are a shorthold tenant, you can be evicted from the premises by simply being given 2 months notice, in writing, taking effect after the initial six months ends (expiring on the last day of a rent period). No reason has to be given. Where a dispute arises, concerning any matter, the landlord can simply end the tenancy in that way.

 

 

Harassing an Occupier

 

Read this FAQ for details of what criminal offences the landlord commits by harassing an occupier of residential premises with intent to bring about an eviction, and what compensation the occupier can sue for:

 

Shorthold Tenancy - possession, eviction and notice

 

If the intimidation is not specifically intended to cause you to give up the tenancy, go to the police and swear out a criminal complaint of threatening and abusive behaviour.

 

 

Guarantor

 

If suing both the tenant and the guarantor, the landlord will have to establish liability against the tenant in order to give rise to liability on the part of the guarantor.

 

A guarantee of this type is normally invalid unless in a deed, i.e. under seal and witnessed, because only a contract by deed is exempt from the legal requirement for all parties to a contract to provide monetary or other consideration. The guarantor will not usually have paid consideration money, so only a guarantee by deed will be binding on him.

 

 

A claim against a guarantor typically fails for either of two reasons -

 

a. the landlord fails to establish liability against the tenant (and because the guarantor is effectively indemnifying the tenant, if the tenant is not liable then neither is the guarantor); or

 

b. the guarantee is invalid because it is not given in a deed, i.e. under seal and witnessed (a contract by deed is the only type of contract which is exempt from the legal requirement that all parties to a contract must provide monetary or other consideration; and as a guarantor will not normally have given consideration, only a guarantee by deed will usually be binding on him).

 

Thus if the guarantee is contained in the tenancy agreement, that agreement itself must be a deed.

 

However, there is an extensive body of case law which allows guarantors many, many other common-law defences (for example, the guarantee is invalidated if the landlord does anything to make the tenant's obligations different, such as allowing the late payment of rent on even a single occasion).

 

 

The guarantor needs advice from a Solicitor on the complex legal issues raised by the law of guarantee: such as whether a guarantee is valid if it is not given in a deed, i.e. under seal and witnessed; and whether this particular guarantee actually covers the disrepair that is being alleged by the landlord; and whether the guarantor has any legal liability prior to a judgement being obtained against the tenant.

 

 

A contract is legally binding only if consideration - usually, but not always, in the form of a money payment - is given. A party to the contract typically gives money, but a guarantor rarely does so, which is one reason why guarantees are a legal minefield.

 

The contract of guarantee is entirely seperate from the tenancy contract. The former is legally binding only if consideration is provided by the guarantor. If no consideration was given by the guarantor, the contract of guarantee can only be valid if it is contained in a deed, because a deed is the only form of contract that is exempt from the requirement for consideration.

 

The first point for the court to decide in relation to the guarantee is therefore whether there was consideration given by the guarantor. If there was none, the next question is whether the guarantee was given by deed, i.e. in a document signed, sealed, and witnessed.

 

If the claim against the guarantor is struck out that probably will NOT affect the validity of any claim brought, now or in the future, against the tenant for alleged disrepair.

 

 

The guarantee is automatically cancelled if a new tenancy agreement is signed, or if the terms of the existing tenancy agreement are changed (for example, if the rent is increased), unless the guarantor signs a new guarantee deed.

 

The logic for this is that the guarantor can only be held responsible for the tenant's liabilities under the terms of the particular tenancy agreement which the guarantor has agreed to guarantee.

 

 

Disrepair

 

Only the court can decide the outcome of each individual item of alleged disrepair. All we here can do is summarise some matters which you might usefully invite the court to take into account.

 

In a case of serious disrepair (e.g. lack of running water, lack of foul drainage, or lack of heating), contact the Housing Department at your local District or Borough Council. They have public health powers, and can help you. In a suitable case they will carry out the necessary repairs, then recover the cost of those repairs from the landlord.

 

 

Tenant suing During the Tenancy -

 

If there is disrepair, the tenant might be entitled in law to sue the landlord for damages (i.e. compensation).

 

Read this FAQ - Disrepairs in privately rented accommodation

 

Also, the landlord can't ask the tenant to pay (e.g. out of any deposit) for the cost of repairs which the law requires the landlord to do. What those repairs are is explained in that FAQ.

 

But the landlord is not liable until notice of the disrepair is given to him (O’Brien v Robinson [1973] 2 WLR 393, House of Lords).

 

Beware of agreeing to pay for any item which is the landlord's responsibility to pay for. A shorthold tenant can be evicted on 2 months notice at any time, once the tenancy has been running for 4 months, if there is no fixed term; so it never makes sense to pay for improvements to the premises.

 

 

Disrepair: Does it end the tenancy?

 

The existence of mere disrepair does not end the tenancy. You must give proper written notice to do that, unless the landlord waives his right to such notice by re-letting the premises.

 

In a serious case, the Council's housing department - who have some public health powers even in a private letting - can certify a property as unfit for occupation. If they do so, there is an argument that the tenancy might thereby be ended, by the contractual principle known as "frustration" of the contract.

 

But if you can't obtain such a certificate in your case, then the tenancy can't be ended by the disrepair.

 

The obligation under section 11 is to keep the property in its initial state of repair, the state it was in at the start of the tenancy, not to put it into good repair; i.e. there is no statutory obligation to improve it. See Alker v Collingwood Housing Association [2007] EWCA Civ 343.

Edited June 8, 2011 by Ed999

[Ed999]

My comments apply only if the premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord), and only if you were over 18 years of age when the tenancy was granted.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Tenancy Deposit Scheme

 

If you paid a deposit, read the FAQs about the tenancy deposit scheme, under which you might be entitled to sue for compensation if the deposit has not been protected, under the Housing Act 2004, if you were granted a shorthold tenancy:

 

- Tenancy Deposit Scheme

 

- Tenancy Deposit Protection - First High Court Decision

 

- TDS eligibility, implication of breach and legal questions answered

 

 

The Court of Appeal decided in the case of Tiensia v Vision Enterprises that if the Landlord protects or repays the deposit even as late as the day of the court hearing, or at any time before judgement (if later), the court will not be able to award the penalty of three times the amount of the deposit.

 

This was NOT overturned by the High Court decision in Potts v Densley. In Tiensia the landlord had protected the deposit at a time when the tenancy still existed. In Potts, where the landlord had only protected it after the tenancy terminated, the Court rejected the tenant's argument that it was too late for the landlord to protect the deposit once the tenancy had ended [see paragraph 55 in the Judgement].

 

 

In a further development, the Court of Appeal has decided, in Gladehurst Properties Ltd v Hashemi (19th May 2011), a case in which the tenancy deposit was never protected by the landlord, that section 214 of the Act only makes sense if both options contained in it (i.e. return of the deposit or its payment into a TDS scheme) are available to the Court. The Court said that as this can only be the case if the tenancy is still on-going, the penalties for non-protection of the deposit are NOT available to the tenant after the tenancy has come to an end: the tenant CANNOT succeed in a claim for three times the deposit once the tenancy is over [see paragraphs 37 and 42 in the Judgement].

 

I quite realise that Gladehurst was wrongly decided. If the tenancy still exists, the court has no jurisdiction to order the return of the deposit, the purpose of which is to meet any rent arrears or disrepair when the tenancy ends.

 

But the practical effect of Gladehurst is that the tenant must make any claim for penalties at the BEGINNING of the tenancy. Remember, a shorthold tenancy can't be brought to an end by the landlord, by notice, in the first six months, nor during any fixed term; and can't be ended by a section 21 notice at any time after that, either, if the deposit is not protected.

 

 

In Potts, the tenant might still have won, if she had raised the related point that the landlord had failed to provide her with the prescribed information pursuant to section 213(5) [see paragraph 56 in the Judgement]. But she failed to do so (she based her claim solely on the landlord's failure to pay the deposit into an authorised scheme), thus she lost the case.

 

If you expressly mention section 213(5) in your claim, then you might win - even though the tenant lost in Potts.

 

The claim you need to make in this respect is for breach of section 213(5) [provision of prescribed information], not section 213(3) [securing the deposit]. If you claim only under section 213(3) you are likely to lose for the same reason the tenant lost in Potts. You must claim under both 213(3) and 213(5).

 

 

None of the foregoing prevents the tenant succeeding in a claim for the return of the original deposit (which the tenant can only sue for AFTER the tenancy ends, as it's security for non-payment of the rent).

 

The tenant will ask for either (a) his deposit back, or (b) payment to him of three times the amount of the deposit - depending whether he is suing after the tenancy ends or during the tenancy. The practical effect of a tenant suing for (b) may well be that a properly advised landlord will protect the deposit, so as to avoid the penalty, in the wake of the above-mentioned court decisions; but the tenant is not specifically asking for that.

 

 

Suing for the penalty, or merely threatening to do so, might cause the landlord to return the entire deposit to you without any deductions, if the tenancy has not ended, thus resolving any dispute.

 

The Act expressly states that the parties to the tenancy cannot agree not to protect the deposit. So it's futile for the landlord to raise this defence - but many still try to!

 

While the deposit is not protected, any section 21 notice given to the tenant is invalid, so will not end the tenancy. But a section 8 notice can validly be given (e.g. for rent arrears).

 

 

As a result of Gladehurst, it is clear that a claim for failure to protect the deposit can ONLY be made BEFORE the tenancy has ended. The Court of Appeal in Gladehurst has overruled the High Court in Potts on this point.

 

In my opinion, the county court could possibly make a sympathetic finding in the tenant's favour, because the Act tends to favour the tenant, in terms of returning the original deposit. It's only in relation to the penalties that the Court of Appeal has severely limited the availability of the remedy.

 

 

Where you paid a rent deposit to the landlord or his agent at the start of the tenancy, you probably won't get it back; so if the landlord is holding the equivalent of one month's rent your best tactic is not to pay the final month's rent, when the tenancy ends, i.e. to let him take it out of the deposit.

 

 

I urge you to contact your MP on-line. Now that a tenant must make an application during the term of the tenancy, and any application made after the tenancy ends will fail, the Government is highly likely, if pressured by MPs, to make major changes, which could be far worse for landlords than the situation as it had been before Gladehurst.

[Jimbles]

Hi Ed999,

 

Thanks for all the info, it is really useful.

 

A couple of questions if you don't mind?

 

Re: TDS, I am very confused, if I want to make a claim, should I do it now? How should I go about it? Which legislation should I use?

Re: Guarantor, From my reading, unless the guarantor has made some kind of payment and has an officially signed/sealed agreement then it will not stand. Is this correct?

 

Many thanks once again

 

James

[katieloo]

If its of any help, I had a particularly obnoxious landlord who made life difficult too. After getting to the end of my teather with him. I checked with the Deposit protection schemes and he had not placed my deposit in any of them. I did not inform him I just went straight to claiming county court online. the return of the deposit plus 3 times which amounted to £6,000.

 

The landlord tried to fight it but was told it was mandatory as he had failed to protect or inform me of scheme within a certain time frame, I think it was one month. He was ordered to pay the amount. He of course did not have it so we offset it against the forthcoming rent whilst I sorted myself out and moved

into a house of my own.

 

I was fortunate to have a good result from a very bad situation bought about by an unscrupulous landlord that thankfully I no longer have to endure.

 

Tennants have rights, its your home.

 

Hope that helps in some way.

[Jimbles]

Hi Katie,

 

Thats great advice thanks. I will have a look at doing as you did, my only concern is the recent high court ruling.

 

Right now I wish it wasn't my home

[katieloo]

Good luck! Time frame. This all happened to me just over 18 months ago.

[Ed999]

Re: TDS, I am very confused, if I want to make a claim, should I do it now? How should I go about it? Which legislation should I use?

 

 

Please re-read my postings carefully.

 

I realise they are quite long, but the legal issues are complex ones. If you can't understand my simplified explanation, you are probably not going to be capable of coping with a court claim; so you might be better to engage a solicitor.

 

If your tenancy has not ended, you can claim the penalty - i.e. three times the amount of your deposit - if your deposit has not yet been protected. You will probably lose if the landlord subsequently protects it or repays it to you, or if your tenancy ends before the court hearing date. Thus the longer you delay, the greater the chance of losing.

 

 

Sue in the county court. Read the FAQ -

 

- Tenancy Deposit Scheme

 

 

The claim you need to make is for breach of section 213(5) of Housing Act 2004 [failure to provide of prescribed information], and under section 213(3) [failure to secure the deposit]. If you claim only under section 213(3) you are likely to lose for the same reason the tenant lost in Potts. You must claim under both 213(3) and 213(5).

 

 

Re: Guarantor, From my reading, unless the guarantor has made some kind of payment and has an officially signed/sealed agreement then it will not stand. Is this correct?

 

No. Please re-read my original posting carefully.

 

Because the guarantor has inevitably made NO payment, the written guarantee is normally not binding; but there is an exception, in that a written guarantee does not need to be supported - validated - by a payment if the document is signed as a deed, i.e. under seal and witnessed, because a contract contained in a deed is binding whether or not the guarantor makes a payment.

 

It has been reported in another thread that the requirement for payment is being abolished this year, after being the law for about 900 years. But so far I have not been able to find confirmation of this.

Edited June 10, 2011 by Ed999

[katieloo]

The claim you need to make is for breach of section 213(5) of Housing Act 2004 [failure to provide of prescribed information], and under section 213(3) [failure to secure the deposit]. If you claim only under section 213(3) you are likely to lose for the same reason the tenant lost in Potts. You must claim under both 213(3) and 213(5).

 

The above subscriber is absolutely spot on with his advice, I claimed under both sections and won.

but I had researched first. My landlord was a particularly vile nasty person who even when no money was owed to him he harrassed and stalked. My partner was very ill, he just wanted his house back.

Under normal circumstances I would have been polite and sent him a letter first about the deposit, which where he was concerned he would have just ripped it up and ignored it. I had a very strong case for taking him to court harrassement, but I neither had the money for solicitors or the energy, so once I had put the wheels in motion with county court online, the choice was not there for him to suddenly make good the deposit, even if he was the sort of person to do so, which is why I won, I

also had paid out time and time again for repairs and electricity etc was in a dangerous state.

 

Which is why I eventually went for the jugular. Staying was then completely untennable. Once my partner was well enough to move and we had exhausted the 'free rent period' as a result of the deposit we moved.

 

I am one of these boring people who are very houseproud and a keen gardener. So needless to say the house was spotless when we left I even had the carpets steam cleaned, we had done our own running repairs as I said above and the gardens that were overgrown when we moved in were 'manicured' to within an inch of their lives.

 

Two weeks after moving we received a solicitors letter to say we had left the house in a disgusting filthy state with piles of dirt and rubbish everywhere and the gardens were overgrown, so they were suing us for the cost of putting the house right and sending in professional cleaners. They also stated we had damaged the kitchen. They supported this with two photographs, one close up of a kitchen corner unit that had quite obviously had its door taken off and laid on one side, and the other was a closeup of the compost heap where I had piled up the cuttings and leaves from the spring clean up of these extensive yet manicured gardens.

 

Fortunately I had prempted this horrible person doing something stupid, and exactly one hour before I left I took, dozens and dozens of high res digital photographs of every corner and detail of the house to show how spotless it was and also off the garden, these were digitally dated and timed, I also walked the house and the garden with a video camera which was also timed and dated, then had it all verified by two independent people, one a neighbour. I heard no more, from this man or his solicitor.

 

So yes as I said the above post ed999 is very sensible advice. All I can add to that is, photographs take plenty.

 

Good luck, I hope you get things sorted very soon.

[Jimbles]

Thanks both of you for the advice, I have just been onto the the shelter helpline, they were brilliant.

 

@ED999 you surmised correctly, I have only really skim read the posts so far, and yes I may have come to a couple of incorrect conclusions, TBH I did not expect so much information and am deeply grateful. I will re-read your posts and post back any sensible questions later.

 

@Katieloo Your story sounds similar to ours, however we also have a disabled son as well as my partner being ill, things are tricky at the best of times. The advice from the helpline said that to claim for TDS you have to send a letter to the landlord first giving him time to sort it out, you mentioned you decided against this, was this an issue in court?

 

Everyone thanks for your help so far, I am going to probably get in touch with environmental health soon if the repairs are not carried out.

[katieloo]

That is correct to send a letter first.......its also polite and shows that you at least are reasonable even if the landlord isnt! I acted on a rush of blood to the head and having litterally just opened my curtains to see someone sent by the landlord poking about in the garden. It was at a time when my life seemed like one disaster after another. Just come through a serious illness myself then my new partner critically ill, I felt it was never going to end.

 

I am now happy, and almost all my past sorted out. Some of my past disaster were from me taking my 'eye of the ball', and there are plenty of people ready to kick you when you are down. I learnt not to let them anymore and kick back, which is why I am on a mission to finally close down my past mistakes.

 

The new me started with me taking action with regard to that deposit. I was however lucky, I had an arrogant landlord who thought he was invincible and a judge who took an instant dislike to the landlords attitude. It was mentioned that the first he heard about it was when he received the summons. The judge felt that it was mandatory and ignored this and ruled it be paid. But as I say I was very lucky. The chances are if you go down the correct route and send the letter to your landlord first, if he is of the same mind he too will ignore it and then once court papers are issued it too will become mandatory.

 

Follow the advice of the professionals and of Ed999. Give your landlord a timeframe in which to make good the deposit. If not then go on line and go for it.

If it gets to court (which with me was a circuit judge, little old me, the landlord, his wife and their solicitor across a small table that we crammed around!). The judge just rubber stamped it and ruled there was no argument.

 

Stick to the correct way, cover your back always....I was lucky....for once! Hopefully you will be too.

[Ed999]

@ED999 you surmised correctly, I have only really skim read the posts so far, and yes I may have come to a couple of incorrect conclusions, TBH I did not expect so much information and am deeply grateful. I will re-read your posts and post back any sensible questions later.

 

 

Please do feel free to ask about anything you don't understand. I realise it is a lot of information to take in.

 

May I just explain one point: Katieloo's experience happened before the most recent Court cases were decided, in the High Court and Court of Appeal, and those later cases have made significant changes in the law. If you notice points where my comments are in disagreement with Katieloo's, the probable reason is that the law has changed since Katieloo's case was decided.

[katieloo]

I agree Ed999 which is why I thought to go back and put the time line in i.e. 18 months ago. Laws are changing all the time. Its a minefield, I got lucky

and was adding support that all is not lost if the proper routes are followed. You are talking sense. Hopefully I am giving support.

[Jimbles]

Hi guys,

 

Just thought I would update you on things so far. After the excellent advice received from both here and the Shelter helpline, I have a plan. I have sent a letter asking for the repairs to be carried out in a specific timescale, mentioning the deposit/TDS.

 

I am also going to concurrently start a claim against the TDS. I will be paying the rent in full next week so there is no grounds for a section 8 and obviously he cannot enforce a section 21 with no TDS.

 

Moving forwards I have been advised the best option with the severity of the repairs is environmental health, they would probably condemn the place, giving the council the duty to re-house us I believe (our son is disabled so I think we get some priority?!?), even if they do not condemn, we would then be in a position to start taking action against landlord for repairs.

 

Do you guys agree with this process? Have you any tips/advice? I am literally just going to read through the info about TDS and start the ball rolling for the court action.

[katieloo]

Hi again,

 

It is my opinion that you are doing this the right way and have thought this out well. I know you are right about priority housing. As you know if you do not deliberately make yourself homeless you would become priority with your combined circumstances.

 

Good luck with all of this, hope it all goes well, I am sure it will, you sound like you are getting it all under control. Go for it!

[Ed999]

My comments apply only if the premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord), and only if you were over 18 years of age when the tenancy was granted.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Section 8 notice

 

May I offer a note of caution. You appear to have assumed that rent arrears - and nothing else - is the basis for a section 8 eviction. If you read the FAQ Shorthold Tenancy - posession, eviction and notice you'll find this is not so. That FAQ explains the various other grounds for issuing a section 8 notice.

 

 

Disrepair

 

In a case of serious disrepair (e.g. lack of running water, lack of foul drainage, or lack of heating) the Housing Department at your local District or Borough Council have public health powers, and can help you. In a suitable case they will carry out the necessary repairs, then recover the cost of those repairs from the landlord.

 

The existence of mere disrepair does not end the tenancy. In a very serious case, the Council's housing department - who have some public health powers even in a private letting - can certify a property as unfit for occupation. If they do so, there is an argument that the tenancy might thereby be ended, by the contractual principle known as "frustration" of the contract.

 

But if you can't obtain such a certificate in your case, then the tenancy can't be ended by the disrepair.

 

The obligation under section 11 is to keep the property in its initial state of repair, the state it was in at the start of the tenancy, not to put it into good repair; i.e. there is no statutory obligation to improve it. See Alker v Collingwood Housing Association [2007] EWCA Civ 343.

 

 

Using the Rent to pay for Repairs

 

A tenant does not have the right to withhold rent in an attempt to force the landlord to carry out necessary repairs. Doing so could jeopardise the tenant's right to remain in the property, because the landlord can start eviction proceedings if there are rent arrears.

 

There is a legitimate procedure for a tenant to use the rent to pay for necessary repairs, derived from the case of Lee-Parker v Izzet (1971) 1 WLR 168. The details of what repairs legitimately fall within the scope of the procedure are summarised in the following FAQ, under the sub-heading "Using the rent to pay for the repair" -

 

• Disrepairs in privately rented accommodation

 

That FAQ explains the procedure that you MUST comply with if you propose to use the rent to pay for remedying the disrepair.

 

You must obtain tradesmen's quotes or estimates for the cost of remedying the disrepair. In general, a single quote is useless; you must obtain a minimum of two competitive quotes for each job.

 

 

Public Health Powers

 

If a Local Authority finds a category 1 hazard (the more serious type of hazard) in a property, they must take some form of action. If they find a category 2 hazard, they may take action.

 

The available powers are:

 

Category 1 Hazards

• Serve an Improvement notice under section 11 Housing Act 2004

• Issue a prohibition order under section 20 Housing Act 2004

• Serve a hazard awareness notice under section 28 Housing Act 2004

• Commence emergency remedial action under section 40 Housing Act 2004

• Issue an emergency prohibition order under section 43 Housing Act 2004

• In extreme cases they may also issue a demolition order or slum clearance

 

Category 2 Hazards

• Serve an Improvement notice under section 12 Housing Act 2004

• Issue a prohibition order under section 21 Housing Act 2004

• Serve a hazard awareness notice under section 29 Housing Act 2004

 

Note: Next to each option is the section under which it is served. For example, an improvement notice based upon a category 2 hazard is served under section 12. If an improvement notice is served under section 11 in relation to a category 2 hazard, this error will be fatal to the notice (most authorities when serving improvement notices now quote both sections to get around this problem).

[Jimbles]

Hi ED999,

 

Thanks once again for your thorough advice.

 

I am just looking through the TDS info, I am quite confused, I am ready to make my claim, however I am unsure of the exact process, in one thread it talks about the N1 and the N208 and says that you have to decide which is best for you, TBH I have no idea as to the best way forwards, this is the first time I have ever done anything like this and I want to make sure I get it right first time as time is of the essence.

 

Many thanks

 

James

[Snorkerz]

N1 is to reclaim the deposit only

 

N208 is to reclaim the deposit AND claim the 3x penalty (expensive and likely to fail)

 

www.moneyclaim.gov.uk is the cheaper online version of N1

[Jimbles]

Hi Snorkerz, why would you say that it is likely to fail?

If I have understood correctly, as I have reminded my landlord in writing of his responsibility to protect the deposit, under the legislation if he does not then protect the deposit and I take him to court within the tenancy, would they not be bound to award 3x deposit?

 

I know this was the case in the past, there have been recent rulings regarding claiming after the tenancy is ended however I thought that in my case as the deposit is not protected and I doubt will be before the case comes to court then that was the only option presented to the courts?!?

[Snorkerz]

To defeat your claim, all the landlord would have to do is protect or return the deposit before the court hearing. Once this has happened, the 3x can not be awarded. Why would the LL not protect the deposit given these 2 options (assuming a £500 deposit)

1) Pay tenant £500 deposit back; or

2) Be ordered to pay tenant £2000 plus solicitors costs, plus his own legal fees, and probably get a CCJ.

 

Such a claim would not be heard in the 'small claims' track, it would be heard in either the 'Multi Track' or 'Fast Track'. Both of which have higher fees than 'small claims' and are much more complex - usually requiring a lawyer to at least guide you if not represent you - more £££s

 

If you pursued the claim after LL had returned your deposit, you could face not only having to pay your own solicitors costs, but your opponents too.

[Ed999]

My comments apply only if the premises are entirely within England and Wales, and only if you were granted a shorthold tenancy (under which you - and your spouse/partner/children, if any - had exclusive use of a seperate dwelling, which was not shared with another tenant nor with the landlord), and only if you were over 18 years of age when the tenancy was granted.

 

This posting is supplemental to the information in this forum's "sticky" threads and is NOT to be read in isolation.

 

 

Because of the confused state of the law, whether you sue during the tenancy or after the tenancy ends it might be prudent to claim:

 

a) the statutory sum for breach of section 213(3) [securing the deposit],

b) the statutory sum for breach of section 213(5) [provision of prescribed information], and

c) refund of the original deposit.

 

Even if the tenancy exists when you start the court claim, you cannot know at that point whether it will still exist when the hearing date finally arrives; so it is prudent to keep all your options open.

 

 

The practical effect of a tenant suing for (a) may well be that a properly advised landlord will protect the deposit, so as to avoid the penalty.

 

The Court probably cannot order (a) if the landlord protects or refunds the deposit at any time up to the date of the court hearing, or if the tenancy ends before the date of the court hearing.

 

The Court probably can order (b) even if the tenancy ends before the date of the court hearing.

 

The Court probably cannot order © if the tenancy is still in existence on the date of the court hearing.

 

 

As a result of Gladehurst, it is clear that a claim for failure to protect the deposit [a section 213(3) claim] can ONLY be made BEFORE the tenancy has ended.

 

But the tenant can probably win a claim under section 213(5) if the landlord fails to provide the prescribed information, even if the tenancy is over.

 

In my opinion, the county court could still order a refund of the original deposit where the tenancy has ended. It's only in relation to the penalties that the Court of Appeal has severely limited the availability of the remedy.

 

 

Where the total amount claimed is less than £5,000 the case will probably be allocated to the 'small claims' track in the county court, where a party can NOT be required to pay any of his opponent's legal fees.

Edited June 21, 2011 by Ed999

[mariner51]

Jimbles

I believe Snorkes may be referring to the fact if you sue for 3X deposit this has to be via the more expensive County Court route and not the SCC for return of deposit. Also if you lose CC action you will be liable for other side's costs.

Recent Appeal Court decisions, binding on CC, suggest LL can avoid £x penalty if he repays or protects deposit + provides reqd info at any time up to time of hearing. thus you would lose & incur high costs. Whilst an unprotected deposit prevents LL from serving s21 Notice he can still serve a s8 and obtain reposs.

When you say you can now pay the rent in full, do you mean next month's rent or including all rent arrears?

Your best chance is for Council EHO/private rented housing officer inspection. If they do not issue a prohibition Notice, they can issue statutory repair notices level 1 or 2 which gives LL up to 3+ months to comply, during which you would remain liable for rent, subject to AST T&Cs. Don't expect LL to be a happy bunny esp if he feels rent has been witheld.

[Ed999]

Jimbles

I believe Snorkes may be referring to the fact if you sue for 3X deposit this has to be via the more expensive County Court route and not the SCC for return of deposit. Also if you lose CC action you will be liable for other side's costs.

 

 

Jimbles, please state the amount of the deposit held by the landlord.

 

If the deposit is LESS than £1,250 then your total claim will be LESS than £5,000 and you can sue in the Small Claims Court [sCC] - a division of the County Court in which you normally can't be required to pay any of the landlord's solicitors fees if you lose the case, and where you will be allowed to conduct your case yourself, without needing to engage a solicitor of your own.

 

It seems likely you will lose. The landlord is sure to protect the deposit if you sue for the statutory penalties. And if properly advised he will then give you the prescribed notice also. And if the tenancy still exists when the hearing date arrives, your claim for your original deposit back would fail.

 

 

When you say you can now pay the rent in full, do you mean next month's rent or including all rent arrears?

 

 

The landlord can evict you using section 8 if there are ANY rent arrears, or if you have persistently been late in paying rent (even though there are currently no arrears). The court has a discretion, but you may be unlucky; it might exercise its discretion in favour of the landlord if it thinks you've been witholding rent intentionally (rather than simply been unable to afford to pay thru no fault of your own).

 

If a statutory repairs notice is whacked on the landlord, he'll be vindictively determined to evict you.

Edited June 22, 2011 by Ed999

[Snorkerz]

As a result of Gladehurst, it is clear that a claim for failure to protect the deposit [a section 213(3) claim] can ONLY be made BEFORE the tenancy has ended.

Agreed

 

But the tenant can probably win a claim under section 213(5) if the landlord fails to provide the prescribed information, even if the tenancy is over.

An interesting option which I hadn't thought of - would still be an expensive part 8 claim though.

 

In my opinion, the county court could still order a refund of the original deposit where the tenancy has ended. It's only in relation to the penalties that the Court of Appeal has severely limited the availability of the remedy.

Totally agree - deposit only reurn is a matter of contract

 

Where the total amount claimed is less than £5,000 the case will probably be allocated to the 'small claims' track in the county court, where a party can NOT be required to pay any of his opponent's legal fees.

If it includes a 3x claim, I disagree because irrespective of the amount it will be a part 8 claim.